United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's application (#1) to proceed in forma pauperis and for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The Court finds that petitioner is unable to pay the filing fee, and the pauper application therefore will be granted. Following review, it appears that the petition, inter alia: (a) is wholly unexhausted; (b) is untimely; and (c) fails to state a claim upon which relief may be granted.
The papers presented together with the online docket records of this Court and the state courts reflect the following.
Petitioner Rodger Einstein Hayward was convicted in 1982, pursuant to a jury verdict, of one count of sexual assault and three counts of lewdness with a minor. The victim was six years old. This Court denied petitioner's prior federal petition in No. 3:91-cv-00147-LRH-VPC on the merits. The Ninth Circuit affirmed, and the Supreme Court denied certiorari review on November 1, 2010. Petitioner's last state supreme court proceeding seeking review of his conviction concluded in 1999.
The present petition purports to challenge only the subsequent denial of parole.
The most recent parole denial reflected in the papers attached with the petition occurred on June 25, 2012. It is clear from the petition and attachments that petitioner has not pursued any timely state judicial proceedings that would statutorily toll the running of the federal limitation period. It further is clear from the state supreme court's online docket records that petitioner has not pursued any such proceedings through to a decision by that court.
The Court may raise issues of exhaustion sua sponte. See, e.g., Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988). Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust his state court remedies on a claim before presenting that claim to the federal courts. To satisfy this exhaustion requirement, the claim must have been fairly presented to the state courts completely through to the highest court available, in this case the Supreme Court of Nevada. E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)( en banc ); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific federal constitutional guarantee and must also state the facts that entitle the petitioner to relief on the federal constitutional claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). That is, fair presentation requires that the petitioner present the state courts with both the operative facts and the federal legal theory upon which his claim is based. E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement insures that the state courts, as a matter of federal-state comity, will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731(1991). A petition that is completely unexhausted is subject to immediate dismissal. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.2001).
From both the papers presented and the state courts' online records, it is clear that none of the claims in the petition are exhausted. Petitioner therefore must show cause in writing why the petition should not be dismissed as completely unexhausted.
A federal habeas petition challenging a parole denial must be brought within one year of the denial of parole, absent tolling or delayed accrual. See, e.g., Shelby v. Bartlett, 391 F.3d 1061, 1062-66 (9th Cir. 2004); Parejo v. Frakes, 2012 WL 6019059 (9th Cir. Dec. 4, 2012). The one-year limitation period for petitioner's challenge in the present case therefore began running, at the latest, from the June 25, 2012, denial of parole. Absent tolling or delayed accrual, the limitation period therefore expired on June 25, 2013. This action was not mailed for filing until on or about May 6, 2014, more than ten months after the facial expiration of the limitation period.
Petitioner therefore must show cause in writing why the petition is not subject to dismissal ...